The Charter Strikes Back: A Step Forward for Refugee Rights in Canada

The Charter Strikes Back: A Step Forward for Refugee Rights in Canada

By Stephanie J. Silverman

Almost a year after the Federal Court of Canada struck down the ban on refugee claimants’ denial of health care, a new judicial review finds that a pernicious aspect of the Conservatives’ overhaul of refugee rights is discriminatory and must end. In July 2015, Mr. Justice Boswell found a Canadian Charter of Rights and Freedom violation in one subsection of the foundational Immigration and Refugee Protection Act (IRPA) that will change the direction of refugee rights in Canada.

The entire DCO policy—and not only the RAD bar—demonstrates the failings of theoretically sound laws legislated without due regard for real-world practicalities.

Back in December 2012, the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) came into effect. At that time, Parliament also added to IRPA a paragraph blocking access to the RAD for all refugee claimants from any country on the Designated Countries of Origin (DCO) list.

Canada’s DCO policy emulates Safe Countries of Origin [SCO] policies in Europe, which aim at speeding up the status regularization (and deportation) processes. By labeling 42 countries as generally safe (including Serbia, Hungary and Croatia), Canada disallowed the right to appeal to the RAD for anyone from these countries. The concept of a DCO discounts the mistreatment of minorities in otherwise ‘safe’ countries, including mistreatment faced by sexual and religious minorities and the Roma in Europe, who have come under particular legal, discursive, and legislative attack in recent years. The quantitative and qualitative criteria used by the Government to make DCO decisions are not fully revealed to the public.

The new ruling involves a case where three applicants with credible Geneva Convention refugee claims could not stay in Canada because they come from DCOs. Y.Z. is a Croatian citizen fearing persecution as a Serb and a gay man; G.S. and C.S. are a gay couple from Hungary, and C.S. is also a Romanian national. They gave powerful testimony about being mistreated in their home countries because they are homosexuals; out of fear of reprisals, all three claimants filed confidentiality motions to forgo using their full names. They also spoke about the experiences of being free in Canada to live openly—and, for G.S. and C.S., as a family for the first time.

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To be sure, waiting out a case backlog of many years before receiving a final decision is emotionally and physically trying for refugee claimants. Nevertheless, accelerating the system’s pace and removing protections is unduly harmful. This harm is particularly unfair for people living closeted or secretive lives (like the gay applicants), or for whom the persecution is suffered in ‘private’ (like domestic abuse victims). Positive refugee decisions rely on eliciting convincing and consistent narrative and personal testimony. Being able to ‘prove’ pain, deprivation, and persecution is difficult, requiring time, support, trust, and the cooperation of other people who may harbor feelings of ill will (such as G.S.’s brothers-in-law, who said they will kill him for shaming them).

The applicants challenged the constitutionality of the paragraph blocking their access to the RAD, and the mechanism for selecting which countries to designate. Specifically, their lawyers and public interest litigants argued that denying access to the RAD for DCO-specified refugee claimants violated the Charter right recognizing the universal right to life, liberty, and security of the person, as well as the Charter right of universal equality before the law.

Justice Boswell found that the RAD bar is unconstitutional because it:

… draws a clear and discriminatory distinction between refugee claimants from DCO-countries and those from non-DCO countries, by denying the former a right to appeal a decision of the RPD and allowing the latter to make such an appeal. This is a denial of substantive equality to claimants from DCO countries based upon the national origin of such claimants.

Nevertheless, by sidestepping the matter of the DCO policy’s constitutionality, the Court and Justice Boswell leave operational an intrinsically discriminatory and unfair system of prejudicial treatment.

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There are two other points of interest in this judgment. First, the Court did not accede to the Government’s request to suspend the declaration of invalidity to allow the administration time to adjust. This plea for administrative integrity arises often in the immigration and asylum context: for example, despite being a deprivation of liberty, immigration detention is justified as an administrative step in the status regularization process. Likewise, last year a suspension was granted to the Government to permit ‘time to address’ its (administrative) failings in not providing basic healthcare to refugee claimants, thereby arguably adding layers of time, appeals, and confusion to an already-complex system. Justice Boswell rejected this specious argument:

An immediate declaration of invalidity may put some increased pressure on the resources of the RAD and may delay some removals, but every day that paragraph 110(2)(d.1) is in force is a day that claimants from DCOs are not ‘equal before and under the law’ and will be deprived of their rights ‘to the equal protection and equal benefit of the law without discrimination.’…. Rectifying that inequality as soon as possible outweighs any administrative burdens to the government.

Second, the case reveals the significant failing that no express authority is set out in IRPA on how to remove a country from the DCO list. Apparently, the Government approved an internal process to do so—but not until October 2014, after leave was obtained at the federal court and affidavit evidence was filed on behalf of the applicants. Once again, no details of this process have been publicly revealed nor held up for scrutiny. It should come as no surprise that no country has been removed from the DCO.

Further investigation is needed into the question of how laws, policies, and internal bureaucratic and administrative rules interact in the discretionary governance of immigration and asylum. In fact, the entire DCO policy—and not only the RAD bar—demonstrates the failings of theoretically sound laws legislated without due regard for real-world practicalities.

Stephanie J. Silverman is the SSHRC postdoctoral research fellow at the Graduate School of Public and International Affairs, University of Ottawa, and an instructor in Ethics, Society, and Law at Trinity College, University of Toronto. She is also the co-editor of Immigration Detention: The Migration of a Policy and its Human Impact (Routledge, 2015). 

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